February 27, 2009

Joe the Plumber chats about beating and killing people he disagrees with at a conservative pow wow in Washington, D.C.:

Questioner — You have this great line I read in the paper the other day that if you were to go to Congress, you'd bash some heads in and I thought it was funny but ... could you just say, for example, who that would be?

[laughter, applause]

Joe the Plumber — Uh, pretty much just anybody that stood there and said something bad about our troops. Uh, pretty much anybody who stood there and uh, talked treasonous talk about America. Uh, back in the day if you stood there and ... aw you know what, I better not, I'll get in trouble.

[laughter]

Joe the Plumber — Yeah, no, anyways. No, back in the day, really. Uh, when, uh, people would talk about our military in a poor way, somebody would shoot 'em, and there'd be nothing said about that because they did what was wrong. You don't talk about our troops, you support our troops.

And don't forget, for a fee of only $36, Milwaukeeans can enjoy Joe's madcap hijinks on March 7 in the Midwest Airlines Center, where the articulate JTP will share the stage at 9:30 a.m. with Jefferson County Circuit Judge Randy Koschnick and other local Republican luminaries.

So Patrick McIlheran is proud to have been the Shepherd Express' "Jerk of the Week" on account of the Shepherd writers are political cranks and on account of it's a free paper. Puzzling, because I've never paid to read that political crank's column either. It's also free.*

Can someone explain why this Ann Althouse is taken seriously? Also, since when has Indian been a "race"? According to even those anthropologists who consider these sorts of things significant, Bobby Jindal is a Caucasian. And this coming from a professor of law.

* FTW: "Hard to believe Bobby is an exorcist. After you’d been evicted by him the other demons would never let you live it down."

February 26, 2009

"Rick Esenberg says he's pretty annoyed at bloggers who deliberately twist the facts to try to make their opponents look stupid. We hear you, Rick." — David Haynes, Milwaukee Journal-Sentinel

"Substance of story: Catastrophic consequences of past eight years will be catastrophic. Boo Obama! Republicans have the answers — um, suddenly, mysteriously, ever since they've lost the ability to implement them — but Obama won't listen. Boo!" — Clutch

Lest we're harboring any reservations over the dignified process through which this great State goes about selecting members to its highest appellate court, consider the following from the engorged stylus of one "Butch" Johnson, Koschnick man:

[Wisconsin Chief Justice Shirley Abrahamson] is leading our entire legal system down a destructive path toward her revolutionary dream of a Supreme Court with unchecked power to re-create society in its own image.*

Cory Liebmann offers this official Randy Koschnick fundraising letter for your edification, which further invokes "violent criminals walking free" and "the quiet menace of tyranny lurking in the shadows."

The two-page missive also reveals Judge Koschnick's goal of scaring up** $100,000.00 (all major credit cards accepted) in ten days so he can bring his message — such as it is or may be — to the airwaves.

It's difficult to imagine anyone taking at all seriously this febrile apocalyptic drivel, least of all some of the otherwise respectable individuals whose names are marshaled along its left-hand margin.

I wonder whether they're even aware of its existence.

* While the Capitol tour guides can identify 187 separate European quarries as sources for the marble in the Rotunda, they studiously avoid drawing any attention to the flag of the Bolivian guerrilla resistance fluttering ominously from the Supreme Court rafters.

The Milwaukee Journal-Sentinel's editorial board member David Haynesreiterates Jefferson County Circuit Judge Randy Koschnick's false dichotomy by demanding that Chief Justice Shirley Abrahamson return campaign contributions from attorneys for a law firm set to argue a case before the State Supreme Court next month.

Either return the money or recuse herself, they say. Mr. Haynes then goes on to inaccurately compare the situation to that of Justices Annette Ziegler and Michael Gableman, who in January heard and will this summer rule on a case where one of their biggest political and financial supporters had actually filed an amicus brief on behalf of one of the parties. And by financial support, we're talking millions.

Neither recused, nor repudiated any benefits — those being their very own comfortable, high backed leather chairs — received from the amici, our good friends at Wisconsin Manufacturers & Commerce.

Judge Koschnick, who makes much of his so-called "clean campaign pledge," would do well to recall that that pledge refers to "parties" in suits before the court. Instead, he's conveniently expanded the definition of parties to include their lawyers, private actors with a constitutional right to donate to whichever candidate they choose.

Sorry, people. Conservatives have been howling for years against campaign finance reform initiatives as an abridgment of free speech and so long as Wisconsin adheres to its regime of privately funded popular elections to the appellate courts, this is what you get.

As mentioned here previously, Koschnick's whole campaign is based on accusations of Shirley Abrahamson's alleged ideological tilt toward the likes of plaintiffs in medical malpractice cases.

That is, his entire politically motivated premise assumes that the Chief Justice is already predisposed toward this plaintiff. Therefore, if the plaintiff's attorneys really wanted to procure themselves a judge, they'd distribute their money elsewhere. Now he wants it both ways, just as he wants a number of other things both ways.

At a forum in Madison on Tuesday he again derided the Chief Justice's use of "psychological manuals" to decide a case and in the next breath made reference to "psychological manuals" in support of his own self. No mention of that in the Journal-Sentinel's account.

Furthermore, lawyers for Foley & Lardner, which is representing the adverse party in the suit, have contributed stacks of cash money not only to the Chief Justice but to the rest of the court. So why the selectively chosen focus on Abrahamson and Cannon & Dunphy?

F&L, it stands to reason, would be the most troubled by the contributions in question, since they have an equal and opposite stake in this particular dispute's outcome. And, as the Chief Justice suggested on Tuesday, if F&L wanted her off the case, they'd file a motion for recusal with the court. Which they haven't done.

The Journal-Sentinel, in the meantime, is content to simply reproduce Koschnick's internally contradictory political talking points bereft of even the slightest attempt at searching analysis.

How about pressing Judge Koschnick on his charges of "intellectual dishonesty," or report that he's sent out fundraising letters that misrepresent the law, instead of griping about an alleged flaw in the electoral system that virtually everyone claims to support.

February 25, 2009

One day when Souter was making his usual solo drive from Washington to New Hampshire, he stopped for lunch in Massachusetts. A stranger and his wife came up to him and asked, "Aren't you on the Supreme Court?" Souter said he was. "You're Justice Breyer, right?" said the man. Rather than embarrass the fellow, Souter simply nodded and exchanged pleasantries, until he was asked an unexpected question. "Justice Breyer, what's the best thing about being on the Supreme Court?" The justice thought for a while, then said, "Well, I'd have to say it's the privilege of serving with David Souter."

I could stand about three minutes of Bobby Jindal's cloyingly, annoyingly condescending delivery. Nate Silver says it best:

If it sounds like Jindal is targeting his speech to a room full of fourth graders, that's because he is. They might be the next people to actually vote for Republicans again.

My friend capper thinks he came across like a televangelist flogging snake oil. Exactly like that also. None of which is surprising, issuing as it was from a governor who favors creationist "science" standards.

Los Angeles, Feb 24 (PTI) — As the winning team of "Slumdog Millionaire" finally made it to the 'Vanity Fair' ball the children in the group were disappointed to learn that superstar Madonna had already left the party.

This plant can get you and your compadre each 27-1/2 years in prison whereas this one will take 27-1/2 years off of your life. Follow the logic: it costs fewer tax dollars to kill the people than to keep them in prison.

Randy Koschnick: Judicial conservatives are much more likely to engage in strict constructionism, on the order of Antonin Scalia ...

Antonin Scalia: I am not a strict constructionist and no-one ought to be. . . . [Strict constructionism is] a degraded form of textualism that brings the whole philosophy into disrepute.

Randy Koschnick: I think it's also appropriate if you get into the analysis of ambiguous portions [of legislation] to look at the history behind that particular provision and to try to determine what the authors were trying to accomplish.

Antonin Scalia: On balance, [legislative history] has facilitated rather than deterred decisions that are based upon the courts’ policy preferences, rather than neutral principles of law.

I take issue with your use of the phrase "get pissy" to describe Nick Gotelli's refusal to debate members of the Discovery Institute on evolution. The DI has a proven history of antipathy towards sound science. Their behavior a few years ago around the Dover, PA trial on teaching intelligent design in public school classrooms is ample evidence. The Discovery Institute has consistently displayed the same degree of integrity towards evolution that the Family Research Council does towards human sexuality. Why reward such behavior with a debate?

Andrew Sullivan retorts, in effect: "Because debate is good." Followed by a brief litany of selfless personal anecdotage. But that is hardly the point, and Sullivan's dissenter is exactly correct.

Prof. Gotelli owes that coterie of dissembling harlequins nothing; besides, he clearly has better things to do. And the Discovery Institute hasn't formulated a novel argument since the apologist William Paley tripped over a pocket watch* on the heath in 1802.

* Which reminds me of a joke:

A tourist is visiting the HMS Victory, aboard which Horatio Nelson died during the Battle of Trafalgar. "And if you look here," says the tour guide, gesturing toward a raised commemorative plaque in the ship's deck boards reading 'Here Fell Nelson,' "You will see the place where the Lord Admiral lost his life."

Why, it seems like only three days ago that Milwaukee Journal-Sentinel editorial board member David Haynes admonished the Quesosphere-at-large to cease and desist from "deliberately twisting the facts to try to make their opponents look stupid."

For example, when [President Bill] Clinton held one of his famous town-hall discussions, he invited Abigail Thernstrom — a polite, sophisticated scholar of racial issues and a champion of race-neutrality — to participate in a frank conversation about race. But the moment she expressed an honest objection to racial quotas, Clinton browbeat her as some kind of crypto-racist idiot.

Abigail Thernstrom — it almost goes without saying — is a fellow National Review (and Wall Street Journal editorial page) contributor as well as a reliable, uniformly-stepping Kulturkampf foot soldier.

So how exactly did Clinton "browbeat her" like a "crypto-racist idiot"?

He asked whether her position on affirmative action would find suitable application in the U.S. military and if so, might she countenance its effect of maintaining an all-white officer corps.

Six years later when the United States Supreme Court took up affirmative action in Grutter v. Bollinger, precisely the questions Clinton had raised were addressed during oral argument. At length.

The Justices were referring to a Friend of the Court brief filed by a collection of retired officers describing the affirmative action policies employed by the armed forces and concluding that without such policies, there was no way to guarantee "an adequate number of minorities in the academies to furnish ultimately a reasonable number of minorities in the officer corps," as Justice Scalia put it.

The majority opinion in Grutter v. Bollinger — which even Scalia joined in part — allowed the affirmative action admissions policies at the University of Michigan law school, and the retired officers' amicus brief was arguably the lynchpin upon which that decision turned.

However, don't expect either McIlheran or his buffoonish mentor Jonah Goldberg to characterize Justice Scalia & Co. as "browbeating" the "crypto-racist idiot" attorneys for the petitioners in Grutter.

MARATHON CITY — Less than a week after accusing Wisconsin Supreme Court Chief Justice Shirley Abrahamson of accepting campaign contributions that compromise her impartiality, challenger Randy Koschnick appeared at a Republican fundraiser.

A former Republican congressman and governor of Minnesota, Al Quie, must have been following last year's Wisconsin Supreme Court election more closely than the 81% of eligible voters here who weren't.

On Thursday, Quie will testify to that neighboring State's Senate judiciary committee with a view to carefully avoiding the Wisconsin experience. Quie and several other local notables are recommending reforms to Minnesota's system of electing judges.

And it's clear from this column at MinnPost.com that the deserved villain of the piece is Wisconsin's own Michael Gableman (although Gableman attended law school in St. Paul, so L'Etoile du Nord can proudly assume its share of the responsibility).

But at least one further clarification is in order:

Gableman accused the incumbent Butler of being the "deciding vote" resulting in the "release of [a sexual] predator into Milwaukee County." But the predator was never released. He served his complete sentence before offending again.

Actually those were two separate cases, and two separate falsehoods propagated by Gableman. The "predator" in question is this one,* whereas the complete sentence-server is at the heart of Gableman's ongoing ethics investigation by the Wisconsin Judicial Commission.

Speaking of which, there's unlikely to be a resolution in that case until after this April's election, which currently features yet another Hamline law school alumnus telling every Republican within earshot that Wisconsin's Chief Justice is "intellectually dishonest."

February 22, 2009

Jefferson County Circuit Court Judge Randy Koschnick would appear to be getting a little desperate for attention these days:

During a recent visit to the [Eau Claire, WI] Leader-Telegram, Koschnick called his opponent, incumbent Chief Justice Shirley Abrahamson, a "liberal activist" who has used "intellectually dishonest" reasoning to write laws from the bench.

That's a pretty serious charge, especially coming from Judge Koschnick, who circulated a fundraising letter containing a brazen misrepresentation of the law. Then there are Judge Koschnick's own double standards, a hallmark of so-called intellectual dishonesty.

Highlights of the clean campaign pledge include:• substantiating all claims made during the course of the campaign

So is this yet another double standard, or is Judge Koschnick planning on substantiating these latest charges of intellectual dishonesty? Good luck with that one. Although it would be fascinating to hear Koschnick's scholarly explication of equal protection scrutiny.

In his own words, not just quoting from some dissenting opinion.

Perhaps tellingly, Chief Justice Abrahamson has received the support of Judge Koschnick's own colleagues on the Jefferson County bench. There are only four judges in Jefferson County, and two of them are for the Chief. And one of those is less than pleased with Koschnick.

Well no, that's hardly reflective of the objections to the Bush administration's surveillance program. It was the fact that the net was cast so widely that it was intercepting non-al-Qaeda non-suspects, a.k.a. private, law abiding American citizens.

You know, ends versus means, a crucial distinction with which Mr. McIlheran would do well to familiarize himself if he intends on invoking questions of constitutional doctrine (or, for that matter, the world as it exists beyond the feverish delusions of BDS sufferers).

"Patty," as he is known by his anti-fan club, goes on to compare — via one of his highly trusted sources: some anonymous right-wing blogger, who in turn sources the barely competent National Review "editor" Kathryn Jean Lopez — Bush's constitutionally questionable practices with some offhand remark by a Republican member of Obama's cabinet, the substance of which Obama rapidly kiboshed.

And lest we forget, none other than then-U.S. Senator Obama voted in favor of an amendment to the very Foreign Intelligence Surveillance Act which Patty sarcastically derides as "fascism."

All of which appears in the immediate wake of Patrick McIlheran's colleague, Milwaukee Journal-Sentinel editorial board member David Haynes's irony-infused admonition to "bloggers who deliberately twist the facts to try to make their opponents look stupid."

"Obama is a radical communist and I think it is becoming clear. That is what I told people in Illinois and now everybody realizes it is coming true. He is going to destroy this country and we are either going to stop him or the United States of America is going to cease to exist," said Alan Keyes.

Eric Holder has just taken upon himself a whole lot of explaining to do, and that probably shouldn't be his main administrative concern following on eight years of John Ashcroft and Alberto Gonzales.

Attorney General Holder clearly chose those words deliberately and while there may be more nuanced and supportable views underlying them, it's hard to imagine a national political figure making a less well-advised statement, particularly at the outset of a new regime.

Aside from whether or not this really is "a nation of cowards," what I'd like to know is why the hell Holder would even say such a thing.

If he intended to cause a ruckus and a howl, then he accomplished that. But it's surely not going to be a very beneficial kind of ruckus.

Two of the rules had to do with sitting judges — and candidates for judge — joining political parties and endorsing other partisan candidates for election. Those rules fell fairly easily, as abridgments of the First Amendment freedoms of speech and association.

However in the meantime, judicial elections in Wisconsin are to remain nominally "non-partisan," and no party affiliations will appear next to judicial candidates' names on ballots.

(The court didn't engage that question directly but mentioned it in passing, just as it didn't invalidate the second ethics rule's provision dealing with judicial candidates endorsing political party platforms, as distinct from endorsing individual partisan office-seekers.)

The court determined that although the State undeniably does have a "compelling interest" in maintaining the integrity and bias-free independence of the courts, the ethics rules at issue are not "narrowly tailored" enough to protect that interest where there are other "less restrictive means" of doing so.

In summary, the court wrote:

Because the effect of [the three ethics rules] is to limit the discussion without providing any appreciable benefit in return, these canons violate the First Amendment and may not stand.

Where this "strict scrutiny" is involved the defenders of the rules, in this case the Wisconsin Judicial Commission, are burdened with an especially onerous standard of proof and here they failed to meet it by a considerable distance (the opinion makes that very clear throughout; it's extremely critical of the WJC's reasoning, almost — or perhaps actually — to the point of impatience).

More particularly, the WJC was unable to overcome the dictates of Republican Party of Minnesota v. White, an important U.S. Supreme Court decision from 2002 addressing the general subject of judicial speech during election campaigns.

The third rule, preventing judges from directly soliciting or accepting campaign contributions, collapsed even more easily than the others.

The public, said the court, likely sees no distinction between candidates soliciting and handling contributions themselves personally and setting up a committee to do so on their behalf.

The court observed that the fundraising rule appears to "further no interest at all," and surmised that the only reason for its continued existence was based in nostalgia for the olden days when candidates found it unseemly and in bad taste to personally request and palm cash money with their own hands.*

So it looks like we'll have to stop making merry with Jefferson County Circuit Judge Randy Koschnick for attending exclusively Republican fundraisers (that is, we still can, but just without any legal basis).

February 18, 2009

In the latest volume of the Marquette Law Review, some illuminating observations* by former Wisconsin Supreme Court Justice and current Seventh Circuit Judge Diane S. Sykes:

[Last year's Wisconsin Supreme Court election] was predominated—some might say overwhelmed—by millions of dollars in saturation advertising on television, much of which was crass, misleading, and at times utterly inconsistent with the judicial role. Most of these ads were sponsored by third-party interest groups operating independently for or against the candidates, although one particularly base and deceptive attack ad was sponsored by the campaign of the victorious challenger. . . . Justice Louis Butler, who was defeated by Burnett County Circuit Judge Michael Gableman, did not himself engage in this sort of advertising, to his credit and the credit of the judicial office he [has since] relinquish[ed].

"Sponsored," it seems to me, is a trifle coy. That "particularly base and deceptive attack ad" was paid for, endorsed, authorized, etc. by Gableman and not simply the more general "the campaign of."

And while Judge Sykes doesn't say so directly, she belies a very strong inference that Gableman succeeded in discrediting not only himself but also the very office he now occupies. That's for sure.

It's also noteworthy that Judge Sykes describes the ad as "deceptive," which is in accord with the more serious element — knowingly, as opposed to recklessly — of the provision of the WI Code of Judicial Conduct Gableman currently stands accused of violating:

A candidate for judicial office shall not knowingly or with reckless disregard for the statement's truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.

And apparently Judge Sykes views the ad in its totality as a "statement," rather than a collection of individual, disconnected statements, as a Gableman consigliere has attempted to argue.

Chris Liebenthal of the blog Cognitive Dissidence cogitates on yesterday's decision in West Allis, where a judge found a man not guilty of disorderly conduct after police were called when the man was spotted on his own property strapped with a firearm.

He was planting trees, and perhaps the acorns of further litigation.

Chris assembles a pretty decent argument for why the man's actions may have constituted disorderly conduct.

Just to clarify, I don't think the disorderly conduct statute is a bad law per se;* certainly it includes for much behavior that the community may deem anti-social and deserving of some penalty.

But at the same time it does present the real potential of getting applied in certain circumstances that lead to a bad — as in, unjust — result. And that does happen, which is why I agreed with Pierce.

In this West Allis case, I think the judge made the correct call, but Mr. Liebenthal makes a number of valid points for the prosecution.

* I think this case, interpreting the disorderly conduct statute and summarized in the WI Revisor of Statutes' annotations, is bad law:

"The defendant was properly convicted of disorderly conduct when he appeared on a stage wearing a minimum of clothing intending to and succeeding in causing a loud reaction in the audience." State v. Maker, 48 Wis. 2d 612, 180 N.W.2d 707 (1970).

Mind you, J. Edgar Hoover was in charge back then (although I don't believe he was the defendant in State v. Maker).

February 16, 2009

Some observers are apparently amused by the fact that Jefferson County Circuit Judge Randy Koschnick received an "endorsement" of sorts from convicted "cop killer" Theodore Oswald, transmitted from State prison via a letter to the Associated Press and reported here.

Oswald was tried and convicted for the 1994 first-degree homicide of a police officer during the course of an armed robbery spree in Waukesha County and then-State public defender Randy Koschnick was one of Oswald's trial attorneys.

I thought Judge Koschnick's reaction was pretty impressive: "He is free to say whatever he wants, but his endorsement is no honor to me," the AP quotes him as remarking. No more, no less.

As a longtime aficionado of gallows humor and irony myself, I get the amusement, even if I don't necessarily share in it. In this instance, it may be held against Judge Koschnick for political purposes, and I consider that profoundly unjust.

I also understand the charges of hypocrisy that the endorsement has generated, but those charges have nothing to do with Koschnick himself but rather some of his supporters, who on the one hand laud the candidate for his experience and on the other criticized former Justice Louis Butler for the identical professional experience.

Of course, none of this gets us to the role Koschnick played as Oswald's attorney in 1994 and 1995, in advising his convicted client not to cooperate with law enforcement officials who wanted to question the Oswalds about their role in other felonies. Despite Ted Oswald's life sentence with no opportunity for parole, Koschnick advised his client not to answer police officers' questions about other major crimes, including at least one attempted murder.

First of all, Oswald was found guilty on June 6, 1995, so it's difficult to conceive that Randy Koschnick was representing him as a "convicted client" anytime prior to that.

Secondly, as for "the Oswalds" plural, paterfamilias James Oswald had separate counsel. It wasn't Koschnick. Thus it's highly unlikely that Koschnick was rendering legal advice to James Oswald.

And by April 24, 1996, Koschnick was withdrawn from the Theodore Oswald case altogether.

Third, and most importantly, one should be much, much more concerned if Atty. Koschnick hadn't advised his client of his constitutional rights. Whether or not Oswald chose to abide by that counsel or to cooperate or not is his own individual decision.

Among the lawyer's prescribed roles is to advise his client, and that advice is to reflect the best interests of the client. Ultimately, however, the client makes those decisions, such as choosing to waive his constitutional rights.

And all of the foregoing assumes Mayor Soglin is even describing the circumstances surrounding that advice accurately.

Personally, I am far more inclined to give Koschnick the benefit of the doubt, in that whatever advice he gave Oswald as his client included apprising Oswald of the various benefits and pitfalls potentially accruing from whatever course of action Oswald chose.

That was his job and by every account he did it well. Somebody on this side of the fence had to say it. Might as well be me.

"Sounds a little like a quid pro quo," Bice speculates, the quid being the cops cutting the senator some slack on the citation and the quo Taylor's promise to continue supporting ... the MPD 3rd District's "faith-based initiative."

Earlier on the day of the alleged infraction, Dan Bice can now reveal, Sen. Taylor (D-4th) met with MPD brass and "a group of ministers" with a view to getting local churches to help "fight crime."

It's unclear whose terminology is "faith-based initiative"; it seems to be Bice's. I have a feeling the community program is considerably more benign than that constitutionally loaded description implies.

Perhaps Mr. Bice should clarify.

Correction: "Faith Based Initiative" is how Capt. Edith Hudson described the program. So Bice did clarify and I missed it. My bad.

Still, I wonder what relationship — if any — it has to the somewhat more notorious, or controversial, federal executive programs.

Here's some typically unintentional and low comedy from one of Wisconsin's "leading" (or so I'm told) right-wing bloggers.

Like many of Jefferson County Circuit Judge Randy Koschnick's most ardent political supporters, this one is apparently not well pleased by the fact that Chief Justice Shirley Abrahamson's reelection committee has been outraising Koschnick's confederates by a ratio of 56 to one.

The right-wing blogger, it seems, is upset with a very misleading story that appeared in the AP the other day and is clearly troubled that every single justice on Wisconsin's popularly elected Supreme Court has benefited from campaign contributions, some of which come from — Blessed Saint Ivo of Kermartin forbid! — lawyers.

As explained here, here, and even here, the Associated Press report is a bit of a poorly conceived joke, albeit only slightly less of a joke than some of the outraged, self-satisfied reactions to it.

But the following reaction — and that would be reaction as in right-wing reactionary — merits a dishonorable mention award:

Blog commenter: Why didn't you point out that Abrahamson also received contributions from Foley & Lardner, who was on the losing side of the malpractice case?

Right-wing blogger: Because that was not in the AP article, and only adds to the bill against Abrahamson that she has no reservations to taking money from both sides. Shame on the AP for not reporting every aspect of her sordid fundraising.

As fundraising by candidates for the Wisconsin judiciary is circumscribed by a number of State statutes, there's more than a little innuendo of impropriety, and even illegality, contained within the right-wing blogger's risible expression of petulance.

Mind you, this is the same right-wing blogger who claims to have "argued" that Chief Justice Abrahamson "invented" the law in State v. Knapp, despite her not having authored a single one of the four separate written opinions contained therein.

February 14, 2009

The legislature and the governor cannot say they weren't warned. They were, but they ignored the warnings. Indeed, they ignored everyone except the creationists at the Discovery Institute and the Louisiana Family Forum.

"Public defenders, such as Judge Koschnick was, are vital constituents to the political structure that is the buttress of American law and civilization," [convicted "cop killer" Theodore W.] Oswald wrote.

This is true. More:

Koschnick's defense of Oswald has become an issue in his race against Chief Justice Shirley Abrahamson in the April 7 election. Some critics, including a popular radio host, have said the link makes him unelectable.

Those critics are extremely foolish, as is anyone who holds against Judge Koschnick his experience as a State public defender.

Even at that, the so-called "pro-criminal" rulings of the Wisconsin Supreme Court are useful arrows in the public defender's quiver.

With practically comic predictability, Jefferson County Circuit Court Judge Randy Koschnick has seized vigorously at an extremely biased report that appeared via the Associated Press yesterday.

So devastating is this non-story that he's even bumped his appeal to a local conservative icon, Marquette law professor Rick Esenberg (concurring in the judgment), off the main page of his website.

Judge Koschnick, perhaps experiencing great discomfort because Chief Justice Shirley Abrahamson's reelection committee is raising the lucre at a rate of 56 to one, is "shocked," according to his campaign person Seamus Flaherty, who doesn't even seem to know what a "party" to a civil action is (it isn't the representing law firm, just as a prolific criminal defense lawyer doesn't stand charged with dozens of felonies).

On the one hand, he constantly accuses Chief Justice Abrahamson of "judicial activism" and "legislating from the bench" for, inter alia, holding that a statutory limit on certain medical malpractice damage awards was a violation of equal protection.

In fact, that constant and tedious accusal is just about the complete extent of his entire campaign platform.

That is to say, according to Koschnick's own continuous portrayal of the Chief Justice, she is already "philosophically" predisposed toward the plaintiffs in this case, campaign contributions notwithstanding.

If Koschnick is correct as he apparently believes he is, then the plaintiff's attorneys needn't direct either their written briefs or oral presentation to the Chief Justice at all, but rather toward the so-called "conservatives" on the court, who are more likely to rule with the defendant physician and his insurance company.

(Which is, by the way, Koschnick's insinuated promise as well.)

Those are the justices the plaintiff's attorneys need to persuade, not the Chief, according to Judge Koschnick's own oft-stated premises.

Yet Koschnick is very strongly implying that the Chief's ultimate disposition in the case will be influenced by the perfectly legal contributions of the Cannon & Dunphy attorneys. It's a reckless and desperate suggestion, for which Koschnick provides no grounds.

More significantly, it makes absolutely no sense whatsoever, and that lack of sense is supported by Koschnick's own reasoning.

Obviously, if William Cannon et al really wanted to improve their chances at prevailing — following the implications of Koschnick's sense of money influence — then they would have made their contributions to, for example, Michael Gableman, Koschnick's fellow "strict constructionist" and crusader against "judicial activism."

But no. As Mr. Cannon told the AP, he's made the perfectly legal contributions to Abrahamson's reelection committee because she is by several leagues the more qualified candidate for the position.

Is this the sort of incoherent, double-dealing logic Judge Koschnick intends on applying at the State Supreme Court? Lord help us all.

Jefferson County Circuit Judge Randy Koschnick (@wicourts.gov) discusses his public speaking rider with Wisconsin Right to Life. And here, WRtL claims Koschnick "has 25 years of experience as a judge."

February 12, 2009

Had you told me several years ago I'd find myself spellbound by a narrative of the 1912 presidential election, I'd have told you that you needed your head examined.

Such a hugely entertaining tome, however, is Progressivism At Risk, by Francis L. Broderick. Here's a typical paragraph, surveying the candidates before the Democratic convention in Baltimore:

Clark carried a major handicap, to be sure: He was a bulb of such meager wattage that it was hard to imagine his lighting the way to victory. Against William Howard Taft, himself no spellbinder on the stump, Clark might prevail. But the notion of Clark arguing national policy with Theodore Roosevelt was enough to make even strong men weep. The New York Times, ready to live with Harmon, Underwood, or Wilson, could not conceive of the Democrats' opposing the "ursus horribilis" with a chipmunk: "Of all of his [Clark's] utterances, only the things he ought never to have said are remembered."

Elsewhere Broderick says of Theodore Roosevelt, he needed to be the bride at every wedding, and the corpse at every funeral.

Except it's not cheap, so I promise to return this copy to the library in a couple of days.

With which all 100 will take individual, less company-morale-reinforcing Caribbean resort holidays.*

The paper was flooded with hundreds of calls and e-mails from readers in response to news about the trip.

Some referred to Puerto Rico as a "foreign country."

This one caught my eye too:

What's absurd is how here we have yet another case where the media is running away with a story because they know the uneducated public will eat it all up. For those of you who are making preemptive conclusions without knowing the facts, let me fill you in.

There is a difference between the bailout that everyone is raging about and the capital purchase program that Associated in fact participated in. The difference is that the capital purchase program is one in which taxpayer dollars were spent to make HEALTHY investments in banks that are well capitalized. The return on the taxpayer's investment is 5%. AND in the event the bank fails, the taxpayer's investment has been collateralized by 3 times the amount in real estate. It was merely a way to help banks start lending money again to people who need it. It has been ABUSED by the mega institutions who could qualify and for them, I will join you in disgracing them.

But not this small hard working midwest bank. Put yourself in the shoes of the personal bankers, the bank managers, the tellers, the back room people who never get any recognition — would you want your hard earned trip to be pulled from you even though the bank turned a profit and you got your job done? I think not.

It didn't catch many other eyes though, apparently.

* A pat on the back, says David Haynes, is all the 100 should get, "especially after months of arrogance by" . . . all those other non-Associated Bank banks. Yes, that makes tremendous sense.

"The principle that the Supreme Court has made clear is that school districts may not coerce students or students' family members to be exposed to religion at graduation," said Alex Luchenitser, senior counsel for Americans United.

'Well maybe it's about time some of those darn teenagers were exposed to a very large cross!' many will doubtless argue.

In addition, at past graduations, the church displayed banners reading "Leading Children to a Transforming Life in Jesus" and "Lord of Lords," and church personnel distributed religious pamphlets and other materials to graduating [public school] students and their families.

February 11, 2009

I'm pleased to announce that the Milwaukee Journal-Sentinel has wisely joined me in endorsing my friend Michael Mathias for the MPS 4th District board seat. The primary election is this coming Tuesday.

In a January 29 interview with WisPolitics.com, Jefferson County Circuit Judge Randy Koschnick mounts his State v. Knapp hobbyhorse once again. On this ride 'round the circuit, his observations are especially remarkable.

Unfortunately, Koschnick's simplistic campaign pronouncements require a considerable amount of background explanation to rectify, so this is necessarily a rather lengthy post.

In a nutshell, Judge Koschnick is given to complain that only verbal statements obtained in violation of the Miranda warning requirement are to be suppressed at trial, and not physical evidence gathered as a result of those statements (or, in the case of Knapp, a nonverbal statement expressed by the suspect's pointing at a pile of clothes, which contained a bloodstained sweatshirt).

He suggests that his understanding reflects the current state of the law and that State v. Knapp is a lawless aberration: "activist" judges "legislating from the bench."

Not only is he mistaken but he contradicts himself, and here's why.

Responding to an astute question about what remedy is available to suspects who ultimately become defendants by dint of law enforcement's intentional violation of their constitutional rights, Koschnick unequivocally announces that such defendants should "Absolutely" be granted the suppression of physical evidence seized under such circumstances.

He goes on to distinguish among what he believes to be different constitutional rules which he supposes to have different effects than others:

JR Ross: The State Supreme Court ruling called it an intentional Miranda violation. [The State v. Knapp decision said] if there is an intentional Miranda violation, there must be some kind of penalty for the police, essentially. Just to play devil's advocate, if the cops intentionally violate somebody's rights, shouldn't there be some kind of consequence for that?

Judge Koschnick: Absolutely!

JRR: And so why is the remedy that [the Knapp court] prescribed, which was not allowing the bloody sweatshirt in [as evidence at trial] not an appropriate remedy?

JK: If the police violate somebody's rights by not giving a search warrant when it's required, or they violate somebody's due process rights, then physical evidence is normally suppressed as well. But the United States Supreme Court has been very clear that failure to read Miranda rights does not rise to the level of full-blown constitutional violation. And if you read the [State v. Knapp] decision carefully, you'll see that that distinction has always been in existence. And it is in existence to this day with the United States Supreme Court.

What Koschnick is evidently saying is that the Miranda warning is not, to borrow the actual parlance of the United States Supreme Court, a "constitutional requirement," unlike a search warrant or some particular, individual component of due process.

Therefore, if the Miranda warning was a "constitutional requirement," then surely its deliberate, intentional withholding would require the suppression of physical evidence so obtained, correct? "Absolutely!" says Judge Koschnick.

Intentional and deliberate

First of all, the crucial distinction in Knapp — which Koschnick conveniently never mentions — is that the Miranda violation was intentional and deliberate. This fact is undisputed in the record.

A meaningful understanding of Knapp is simply not possible without bearing that in mind, particularly in light of two of the U.S. Supreme Court cases, United States v. Patane and Missouri v. Seibert, which control the Wisconsin Supreme Court's decision in Knapp.

Secondly, on June 26, 2000, the United States Supreme Court decided in Dickerson v. United States that the Miranda warning was indeed a constitutional rule, and not just a "prophylactic" protection for the Fifth Amendment guarantee against self-incrimination.

On this question the Court was quite clear: Dickerson was a 7-2 decision, which is about as clear as you can get during the Rehnquist era, when 5-4 splits were much more common.

A prophylactic rule is understood separately from a constitutional rule. That is, a prophylactic rule is a rule meant to protect a constitutional rule. In effect, law enforcement may violate a prophylactic rule without violating the constitutional rule.

But in Dickerson, the Court announced that Miranda itself is a constitutional rule, not merely a protective, prophylactic rule.

As noted earlier at this blog, this is what Chief Justice Rehnquist wrote:

The Court of Appeals surveyed Miranda and its progeny to determine the constitutional status of the Miranda decision.
. . . The Court of Appeals concluded that the protections announced in Miranda are not constitutionally required.

We disagree with the Court of Appeals' conclusion . . .

In other words, the Miranda warnings are constitutionally required. The Miranda rule is a constitutional rule, just the same as is, for example, any other component of what the Fifth Amendment calls due process of law, the intentional violation of which even Judge Koschnick declares "Absolutely" must result in the suppression of physical evidence.

And recall that Koschnick himself, as the presiding judge, ruled to suppress other physical evidence from Matthew Knapp's homicide trial on different grounds (although he was reversed by the Wisconsin Supreme Court on that ruling as well).

Less than clear. More like opaque.

Since Dickerson, the U.S. Supreme Court has been far, far less than "very clear." In Patane, three Justices — including Rehnquist — found that a violation of Miranda was not sufficient to exclude physical evidence. For the three, Justice Thomas wrote:

In this case we must decide whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements. The Court has previously addressed this question but has not reached a definitive conclusion.

But the Court didn't reach a definitive conclusion in Patane either; only those three Justices did. While two others agreed with the result in Patane, they only joined the plurality insofar as that result applied to the specific circumstances of the case. They declined to join Justice Thomas's broader discussion, and in so doing declined to join his broader conclusions.

And of course the remaining four Justices dissented altogether, four being a number greater than three (as even most lawyers know).

Furthermore, the facts in Patane were quite different from those of Knapp (which makes the cases distinguishable, as we say). Most importantly, the violation in Patane was neither intentional nor deliberate. The discussion by the plurality in Patane is limited to "mere failures to warn" and "negligent Miranda violation[s]."

Negligence requires neither intent nor deliberation. Negligence is but a failure to exercise reasonable care and the negligent violation of constitutional rights certainly may not require such remedies as the suppression of evidence at a criminal trial.

On that question the law most definitely is very clear.

Indeed, one of the two officers present "attempted" to Mirandize Samuel Patane, but Patane interrupted the officer, stating that he already knew his rights, and the Miranda warning was never completed. That's barely even negligence, if at all.

Seibert, on the other hand, did involve a deliberate and intentional withholding of the suspect's Miranda rights, but not the seizure of physical evidence.

Significantly, a majority of the Court in Seibert affirmed Dickerson's holding that Miranda is itself a "constitutional requirement," and not simply a prophylactic device meant to protect some other, separable constitutional requirement.

While only four Justices formed the plurality opinion in Seibert, as is often the case, Justice Kennedy joined that result but wrote separately:

We have held . . . that physical evidence obtained in reliance on statements taken in violation of the rule is admissible, see United States v. Patane.

But recall that Justice Kennedy also wrote separately in Patane and limited his own conclusion to the specific facts of that case, where the Miranda violation was neither deliberate nor intentional.

Yet Judge Koschnick still believes that the United States Supreme Court's guidance on the question of whether physical evidence obtained further to a deliberate and intentional withholding of the Miranda warning is "very clear"? No, it isn't.

In fact, a majority of the U.S. Supreme Court has never directly decided that question.

The "new federalism"

Which brings us, ultimately, to Judge Koschnick's other criticism of State v. Knapp: that the Wisconsin Supreme Court, finding at best ambiguous guidance on the federal constitutional question, reverted instead to the Wisconsin constitution's corollary to the Fifth Amendment's Self-Incrimination Clause.

Returning to Chief Justice Rehnquist's opinion in Dickerson, one finds practically an open invitation for State courts to do exactly that:

It is beyond dispute that we do not hold a supervisory power over the courts of the several States. . . . With respect to proceedings in state courts, our "authority is limited to enforcing the commands of the United States Constitution."

Moreover, when the United States Supreme Court vacated State v. Knapp, it did so not on the particular merits of Knapp, but rather it simply ordered the Wisconsin Supreme Court to revisit Knapp in light of its decisions in both Patane and Seibert and in so revisiting, remain consistent with those two opinions (which even between themselves are inconsistent: i.e., not an indicator of clarity).

And that is what a majority of the Wisconsin Supreme Court did.

Indeed, Justice Wilcox's dissenting opinion in Knapp is devoted almost entirely to admonishing the majority only for departing from the general reasoning employed in some prior State cases. Not a single word of his dissent addresses the distinguishing circumstances of Knapp — the deliberate and intentional withholding of the Miranda warning — from those previous cases.

Tellingly, however, Justice Wilcox takes pains to distinguish Knapp from both Patane and Seibert, and ironically, for the same reasons discussed above which show that the latter two cases provide insufficiently clear guidance as to the fact pattern in Knapp.

He also errs in attributing to "the Supreme Court" that "the Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause."

As we have seen, this was the view of only three of nine Supreme Court Justices, not "the Court," and even then only as it applied to the particular circumstances in Patane, where there was a so-called "good faith" failure to Mirandize the suspect, as opposed to an intentional and deliberate one.

This should have become obvious to Justice Wilcox when he noticed that one of those three Justices, Rehnquist, was the author of Dickerson, which announced that Miranda is indeed more than simply a prophylactic rule, but rather a constitutional rule.

Irresponsible journalism

The point of all of this is two-fold. First of all, I believe we should expect from our candidates for the State Supreme Court at least a more thorough understanding of the cases they are using to criticize their opponents on the campaign trail, and that they shouldn't be entitled to a pass when they offer simplistic and misleading formulations of not only those cases but the underlying case law.

Second — and this derives from the foregoing concern — the press bears some considerable responsibility for this situation.

Following the first candidate's forum in Green Bay last month, headlines across the State shouted, "Koschnick accuses Abrahamson of judicial activism," and "Koschnick says Abrahamson favors criminal defendants" and so on and so forth.

Scarcely a word has been devoted to investigating the merits of Koschnick's "accusations," nor whether or not his characterizations of the law were even accurate.

Well, they aren't. Whether the press has the interest or the wherewithall or even the baseline competence to investigate more completely into the grounds (such as they are) for Koschnick's superficial Republican talking points, I can't say.

But it strikes me as both pretty irresponsible and a disservice to voters not to. We went through this last year and any pretense of merit-based selection to the Supreme Court was turned on its head.

Political candidates like Koschnick are well aware of reporters' unwillingness or inability to dissect and discuss complex legal questions and cynically exploit those shortcomings. That should be no way to gain positions on the State's highest court of appeals.

February 10, 2009

A Wisconsin tank-thinkerrecalls the storied* career of Milwaukee-born former Chief Justice of the United States William H. Rehnquist (who is hardly "forgotten" by anybody, incidentally):

Conservatives may have some gripes about some of the cases his Court refused to overturn (Roe v. Wade, Miranda v. Arizona), although Rehnquist personally dissented in many of the cases upholding those controversial opinions.

Well, no, actually. In fact Chief Justice Rehnquist authored the majority (7-2) opinion affirmingMiranda in 2000, which just happens to be among the subjects of this here blog's forthcoming entry.

* One of the better ones concerns Rehnquist's penchant for crazy wide lapels and flamboyant neckties while working in the Nixon Justice Department, prompting the president's call to "Get me that clown, Renchburg." Rehnquist, C.J., later decorated his robe with a set of golden stripes, reportedly inspired by a Gilbert & Sullivan operetta.

Other tales of Rehnquist, however, are considerably less savory, in particular those related at both of his Senate confirmation hearings, having to do with his activities as a poll watcher in Arizona.